On October 20, 2017, the Ninth Circuit Court of Appeals decided, in the case of Jones v. Las Vegas Metro. Police Dep’t, 2017 U.S. App, LEXIS 20669, that police officers who repeatedly tased a suspect for 90 seconds were not entitled to qualified immunity and that the case could proceed to trial. The Ninth Circuit held that a reasonable jury could find that the officers used excessive force in violation of the Fourth Amendment, and that this type of Taser use violated clearly established law.


On December 11, 2010, Las Vegas police officers pulled over suspect Anthony Jones for a routine traffic stop. Jones, who was much larger than the officers, fled from police on foot. Officer Mark Hatten used his  Taser twice to subdue Jones while he waited for backup officers to arrive. Use of the Taser caused Jones’s body to lock up and fall face first onto the ground.  While Jones was on the ground, Hatten continued to use his Taser in drive-stun mode, repeatedly activating the Taser on Jones’s thigh while kneeling on Jones’s back in an attempt to handcuff Jones. Four backup officers arrived to assist taking Jones into custody.  One of the backup officers, Officer English, deployed his Taser in drive-stun mode to Jones’s upper back.  When the fourth backup officer, Officer Johnson, arrived he ordered that the use of the Tasers cease.   According to Johnson, Jones “´didn’t look like he was physically resisting’” and that there were “´enough officers’” to take Jones into custody.

In total, officers subjected Jones to over 90 seconds of Taser application. Hatten tased Jones essentially the whole time he had him on the ground, with some applications lasting 19 seconds.  English tased Jones for 10 seconds, simultaneously while Hatten tased Jones.

Once officers stopped tasing Jones, his body went limp and Jones was non-responsive. Despite resuscitation efforts, Jones was pronounced dead at the scene.  The coroner subsequently concluded that police restraint procedures, including the use of the Tasers, contributed to Jones’s death.

Jones’s parents sued the Las Vegas police department and the individual officers involved in federal court. The court granted summary judgment for the defendants, and the plaintiffs appealed.


The Ninth Circuit reversed the grant of summary judgment, finding that a reasonable jury could conclude that the officers used excessive force in violation of the Fourth Amendment when they continued to tase Jones once he was surrounded by police.  The Court further found that the law was clearly established that extended Taser use under these circumstances would violate the Fourth Amendment.

The Ninth Circuit held that the initial use of the Taser to apprehend Jones was reasonable under the circumstances. However, the justification for the continued use of the Taser “waned” while Jones was surrounded by police, lying face down, and during the handcuffing process, a reasonable jury could find that the officers used unreasonable force.  The Court noted that Jones did not appear to be physically resisting during the time he was on the ground, did not appear to be armed and did not appear to make any threatening statements or gestures.  Moreover, the Court stated that Taser International had previously warned that repeated applications of the Taser could increase the risk of serious injury or death.  Finally, the Court observed that Hatten testified that Department training, while not forbidding repeated use of the Taser, discouraged such actions and that officers were trained that repeated use of the Taser could contribute to the risk of serious bodily injury or death when certain risk factors were present.  These risk factors included when a subject struggles, was overweight or using drugs or alcohol. The Court noted that Jones exhibited two of these risk factors in that he struggled and was overweight.

The Ninth Circuit also held, with respect to the tasing, that “any reasonable officer should have known that such use can only be justified by an immediate or significant risk or serious injury or death to the officers or public.” Further, “such force generally can’t be used on a prone suspect who exhibits no resistance, carries no weapon, is surrounded by sufficient officers to restrain him and is not suspected of a violent crime.”  The Court noted that the officers should have known that their actions could have contributed to the risk of serious bodily injury or death for Jones based on all of the facts of the case.  Accordingly, they were not entitled to qualified immunity.


In order to enjoy the protections of qualified immunity, an officer cannot violate a clearly established constitutional right. This case makes clear that repeatedly using a Taser, an intermediate level of force, on a prone suspect, who is not suspected of committing a violent crime, who is not armed, who is not physically resisting officers or posing an apparent threat to the public, violates the Fourth Amendment. Agencies that employ the use of Tasers should ensure that officers receive training in the proper use of Tasers and that they only use this type of force when it is justified by the circumstances.  As noted by the Jones decision, the most important factor in the use of force analysis under Graham is whether the suspect poses an immediate threat to the officer or others when determining whether it is appropriate to deploy a Taser or other ECD.

As always, if you wish to discuss this matter in greater detail, please feel free to contact us at (714) 446–1400 or via email at jrt@jones-mayer.com [for James Touchstone] or kfc@jones-mayer.com [for Keith Collins].

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